Ditty v. Hampton

• Decision Date: 20 October 1972
• Citation: 490 S.W.2d 772
• Parties: Stanley DITTY, Appellant, v. Larry HAMPTON, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 772

490 S.W.2d 772

Stanley DITTY, Appellant, v. Larry HAMPTON, Appellee.

Court of Appeals of Kentucky.

Oct. 20, 1972.

As Modified on Denial of Rehearing March 16, 1973.

James C. Brock, Harlan, for appellant.

Eugene Goss, Goss, Forester & Emerson, Harlan, for appellee.

David C. Short, David E. Murrell, Lexington, for Ky. Legal Aid and Defender Assn., amicus curiae.

Leslie Whitmer, Ky. State Bar Assn., Frankfort, for Ky. State Bar Assn., amicus curiae.

Ed W. Hancock, Atty. Gen., Frankfort, for the Commonwealth.

CULLEN, Commissioner.

The Harlan Circuit Court, being of the opinion that the police court of the City of Harlan (a fourth-class city) is unconstitutionally constituted to try criminal proceedings, entered judgment enjoining the judge of that court from taking any steps in the prosecution of one Larry Hampton on two charges of violations of the motorvehicle traffic laws, punishable by fine alone, and a charge of disorderly conduct, punishable both by fine and by imprisonment up to six months. The judgment further enjoined the police judge from presiding over any criminal trial or exercising any jurisdiction in any criminal proceeding, then pending or thereafter commended. The latter injunctive provision was suspended, however, pending an appeal. We have before us the appeal of the police judge from the judgment.

The police judge of Harlan is not an attorney or a person with any training in the law, and the governing statute, KRS 26.190, does not require that the judge of the police court of a fourth-class city be an attorney or be trained in the law. However, the judge of the police court of a first-class city is required by statute, KRS 26.140, to be a lawyer of eight years' practice, and the judge of the police court of a second-class city is required by KRS 26.150 to be a lawyer of four years' practice.

The Harlan Circuit Court was of the opinion that due process requires that the presiding judge in the trial of any criminal prosecution, whether for a felony or a misdemeanor and whether punishable by imprisonment or only by fine, be a person 'learned and trained in the law.' The circuit court further was of the opinion that there was a denial of equal protection of the law in the statutory system requiring police judges in cities of the first two classes to be lawyers but permitting nonlawyers to be police judges in cities of the other four classes.

The appellant maintains that the circuit court is wrong on both of the grounds of unconstitutionality. The appellee Hampton of course defends the judgment in all aspects. Briefs supporting the judgment have been filed also by the Kentucky Legal Aid and Defender Association and by the Kentucky State Bar Association.

In defending the judgment the appellee maintains that the judgment did not require that the judge be an attorney, but only that he be a person with learning and training in the law. It is questionable whether that interpretation of the judgment is correct, since the circuit court expressed reliance on the holding in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, that a defendant threatened with incarceration is entitled to be represented by an attorney. Regardless of what the judgment meant in that regard, we cannot conceive of any workable classification of persons 'learned and trained in the law' as distinguished from licensed attorneys. We point to the fact that in those states whose constitutions require that judges be persons 'learned in the law,' the courts uniformly have held that judges must be attorneys. See Opinion of the Justices, 279 Ala. 38, 181 So.2d 105; State v. Schmahl, 125 Minn. 533, 147 N.W. 425; Jamieson v. Wiggin, 12 S.D. 16, 80 N.W. 137. So we consider the question in issue, as relates to due process, to be whether a police court judge must be an attorney.

We shall consider first the question of due process.

As did the Supreme Court in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, we consider due process as embodying those 'fundamental principles of liberty and justice which lie at the base of our civil and political institutions,' and one test we apply to determine whether due process has been accorded in a given instance is to ascertain what were 'the settled usages and modes of proceeding under the common and statutory law of England before the Declaration of Independence * * * having been followed in this country after it became a nation.'

At the same time, we give recognition to the proposition, stated in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, that:

'* * * basic rights do not become petrified as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits of the essentials of fundamental rights.'

The substance of the circuit court's opinion in the instant case was that if, as held in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, due process requires that the accused in a criminal case be represented by legal counsel when imprisonment is a potential punishment, it necessarily follows that due process requires that the court in such a case be presided over by a lawyer. We believe it does not so follow.

The United States Constitution, in the Sixth Amendment, always has guaranteed the accused in a criminal prosecution in the federal courts the right to have counsel. Our Kentucky Constitutions, beginning with the first one in 1792, always have guaranteed the accused in a criminal prosecution in a Kentucky court the right to have counsel. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, in 1962, the right to have counsel in felony prosecutions in all state courts was recognized. Thereafter, at least as soon as Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, in 1968, it became accepted that the right to counsel existed in prosecutions for serious misdemeanors. In 1962, in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, it was held that an accused is entitled to counsel at an examining trial. And in 1966, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, held that a juvenile was entitled to counsel in proceedings in juvenile court. Never, on the occasion of any of those decisions, was it even suggested that the right to counsel carries with it the right to be tried by a lawyer judge. Obviously, the Supreme Court was aware, when it decided White v. Maryland, that examining trials frequently are conducted by nonlawyer magistrates, and was aware, when it decided Gault, that juvenile court judges in many areas are not lawyers. Yet no question was recognized as existing with respect to the composition of the examining courts and juvenile courts.

All this is to show that there never has been any thought that a right to be tried by a lawyer judge grows out of the right to be defended by a lawyer.

Due process, as regards the tribunal hearing a case, usually has been considered to require only that the tribunal be fair and impartial. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 66 L.Ed. 942. The function of the court is not to defend the accused, or to represent him, but to decide fairly and impartially. An accused needs counsel to defend him, as pointed out in Gideon v. Wainwright, because the government employs lawyers to prosecute him--because our system of criminal justice is an adversary system. But the judge is not one of the accused's adversaries, and is not there either to defend or to prosecute him. So the fact that the accused needs a lawyer to defend him does not mean that he needs to be tried before a lawyer judge.

Long before Gideon v. Wainwright it was recognized that both in civil and in criminal cases a party who could and did employ counsel was entitled as a matter of due process to be heard by that counsel. Yet it never was suggested that there was a concomitant right to a lawyer judge. To the contrary, in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the Supreme Court held that in a parole-revocation proceeding, due process required only a 'neutral and detached' hearing body, members of which need not be judicial officers or lawyers.

It is argued, however, that the right to a legally trained judge was embedded in the common law by the provision of the Magna Carta that 'We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the...